Nyamal Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd
[2021] NNTTA 6
•15 February 2021
NATIONAL NATIVE TITLE TRIBUNAL
Nyamal Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2021] NNTTA 6 (15 February 2021)
Application No: | WO2020/0540, WO2020/0541 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Nyamal Aboriginal Corporation RNTBC (WCD2019/010, WCD2019/011)
(native title party)
- and -
FMG Pilbara Pty Ltd
(grantee party)
- and -
State of Western Australia
(Government party)
DETERMINATION THAT THE ACT IS AN ACT ATTRACTING THE EXPEDITED PROCEDURE
Tribunal: | Glen Kelly, Member |
Place: | Perth |
Date: | 15 February 2021 |
Catchwords: | Native title – future act – proposed grant of exploration licences – expedited procedure objection applications – whether act likely to interfere directly with the carrying on of community or social activities – whether act likely to interfere with sites or areas of particular significance – whether act likely to involve major disturbance to land or waters – expedited procedure – the act is an act attracting the expedited procedure |
Legislation: | Aboriginal Heritage Act 1972 (WA) Native Title Act 1993 (Cth) ss 29, 32, 151, 237 Rights in Water and Irrigation Act 1914 (WA) |
Cases: | Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570 (Allen v Western Australia) Cyril Barnes and Others on behalf of Central East Goldfields People/Western Australia/AngloGold Ashanti Australia Ltd; Independence Group NL [2013] NNTTA 17 (Barnes v AngloGold Ashanti) Jack Dann v Western Australia & GPA Distributors [1997] FCA 332 (Dann v Western Australia) Eaton on behalf of the Nyamal People #10 v State of Western Australia [2019] FCA 1571 (Eaton v Western Australia) Evelyn Gilla & Others on behalf of the Yugunga-Nya People v Great Western Exploration Limited and Another [2020] NNTTA 35 (Gilla v Great Western) Little and Others on behalf of the Badimia People v Oriole Resources Pty Ltd [2005] FCAFC 243 (Little v Oriole Resources No 2) Smith on behalf of the Gnaala Karla Booja People v State of Western Australia [2001] FCA 19 (Smith v Western Australia) WF (deceased) and Ors on behalf of the Wiluna Native Title Claimants/Western Australia/Emergent Resources [2012] NNTTA 17 (WF v Emergent Resources) Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG) |
| Representative of the native title party: | John Edwards, Arma Legal |
| Representative of the grantee party: | Abbey Shillingford, Fortescue Metals Group Ltd |
| Representatives of the Government party: | Reywin Rico, State Solicitor’s Office Michael McMahon, Department of Mines, Industry Regulation & Safety |
REASONS FOR DETERMINATION
The State of Western Australia (Government party) gave notice under s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to grant exploration licences E45/5599 and E45/5592 (the licences) to FMG Pilbara Pty Ltd (FMG Pilbara). The notice for the proposed licences included a statement that the grant is an act attracting the expedited procedure (see s 32 of the NTA). By including this statement, the Government party asserts the grant of the licences is not likely to, in summary:
(a)interfere directly with the community or social activities of the holders of native title in relation to the licence area (s 237(a));
(b)interfere with areas or sites of particular significance, in accordance with their traditions, to those holders (s 237(b)); or
(c)involve, or create rights whose exercise is likely to involve, major disturbance to any part of the licence area (s 237(c)).
The proposed licence E45/5599 is approximately 127.62 square kilometres in size, is situated approximately 100 kilometres north east of Nullagine, and is on land subject to the Nyamal #1 determination (see Allen v Western Australia). The Nyamal Aboriginal Corporation (Nyamal) holds exclusive native title rights and interests over 51.10% per cent of the proposed licence area and non-exclusive native title rights and interests over 35.19% of the proposed licence area in trust for the Nyamal People.
Proposed licence E45/5592 is approximately 67.15 square kilometres in size, is situated approximately 62 kilometres west of Marble Bar, and is on land subject to the Nyamal #10 determination (see Eaton v Western Australia). The Nyamal Aboriginal Corporation (Nyamal) holds exclusive native title rights and interests over 20.97% per cent of the proposed licence area and non-exclusive native title rights and interests over 65.07% of the proposed licence area in trust for the Nyamal People.
Nyamal lodged objection applications with the National Native Title Tribunal (Tribunal) in response to the Government party’s assertion that the expedited procedure applies to the grant of the licences. Nyamal argues the expedited procedure should not apply to the licences on the basis that the grant will likely cause the interference contemplated in ss 237(a), (b) and (c).
Having been appointed to this inquiry, I must look at what is likely to result from the grant of the proposed licences and decide whether there is a real chance or risk of the interference outlined in s 237 (see Yindjibarndi v FMG at [15]). For the reasons outlined below, I find the grant of E45/5599 and E45/5592 is an act attracting the expedited procedure.
Submissions and Determination on the Papers
Nyamal provided contentions referring to sections from Allen v Western Australia and Eaton v Western Australia, which it argues supports its assertion that the expedited procedure should not apply. Nyamal argues the proposed licence areas are within the determination area and therefore the observations of Reeves J in Allen v Western Australia and Eaton v Western Australia apply to the licence areas. However, the sections of Allen v Western Australia and Eaton v Western Australia relied upon contain broad references to Nyamal people’s country generally, and not to the proposed licence area specifically.
Nyamal also provided the statements of Gavin Mitchell dated 10 April 2019 and Doris Eaton dated 28 September 2020. Mr Mitchell describes himself as a Nyamal Traditional Owner. Mrs Eaton describes herself as a Nyamal common law native title holder. I accept Mr Mitchell and Mrs Eaton have authority to speak for the licence areas.
FMG Pilbara provided a statement of contentions. FMG Pilbara also provided the affidavit of Nerolie Nikolic dated 15 October 2020 and a ‘Guideline for the Management of Aboriginal Cultural Heritage – Fortescue Project Areas’ dated July 2013.
The Government party provided contentions, tenure information including a series of maps, the results of searches of the Department of Planning, Lands and Heritage Aboriginal Heritage Inquiry System (AHIS), the statement under s 58 of the Mining Act 1978 (WA) (Mining Act) (s 58 statement), and a draft Tenement Endorsement and Conditions Extract.
Having considered all of the material before me, I am satisfied it is appropriate to determine the matter ‘on the papers’, as permitted by s 151, without the need for an oral hearing. All parties indicated they were content with that approach.
The Licence and FMG Pilbara’s proposed activities
The licence is an exploration licence proposed to be granted under s 57 of the Mining Act for a period of 5 years. Section 66 of the Mining Act sets out the rights conferred by an exploration licence, in summary, as the rights:
(a)to enter the land with the personnel and machinery necessary for exploring for minerals;
(b)to explore and carry out operations and works to explore for minerals including digging pits, trenches, holes, sinking bores and tunnels to the extent necessary, subject to any conditions imposed under ss 24, 24A and 25 of the Mining Act;
(c)to excavate, extract or remove earth, soil, stone, fluid or mineral bearing substances not exceeding the prescribed limit of 1000 tonnes[1] unless approved by the Minister and subject to any conditions imposed under ss 24, 24A and 25 of the Mining Act; and,
(d)subject to the Rights in Water and Irrigation Act (1914) (RIWI Act), to take and divert water from any natural spring, lake, pool or stream in or flowing through the licence area or from excavations made and sink a well or bore from which to take water for domestic or mineral exploration purposes.
[1] Prescribed in Regulation 20 of the Mining Regulations 1981 (WA).
As set out by the Government party in the Endorsements and Conditions for the grant of the licence, the exercise of the rights set out in paragraph [11] above requires the prior grant of a licence, permit or permission from the Department of Water and Environmental Regulation (DWER).
In its s 58 statement relating to E45/5599, FMG Pilbara states it is seeking to explore the area for various types of iron deposits and/or explore for base and precious metal mineralisation. In year 1 FMG Pilbara states it will undertake literature search, acquire imagery and geophysical data, mapping and rock chip sampling, interpret historical data sets and perform gridding, access and Aboriginal heritage clearance. It sets out that this has an estimate cost of $42,000 and depending on the success of this phase of work may give rise to drilling, metallurgical testing and further interpretation and resource estimation activity. No estimated costs are provided for these further phases of potential activity.
In relation to E45/5592, the s 58 statement of FMG Pilbara sets out a largely identical set of activities in year one and year 2, with the estimated cost of the year 1 activities being $22,000.
Legal Principles
The legal principles outlining the approach I am taking in this inquiry are outlined in Yindjibarndi v FMG at [15] – [21]. In general terms, it is the role of the Tribunal to undertake a predictive assessment of whether interference in the matters outlined in s 237 is likely to occur as a result of the grant of the licence. In doing this, it is accepted that the term ‘likely’ ‘requires a risk assessment by the Tribunal that will exclude from the expedited procedure any proposed act which would involve a real chance or risk of interference or major disturbance of the kind contemplated by s 237’.[2]
The s 237 predictive assessment
[2] Smith v Western Australia, [23].
Section 237(a) – Likelihood of interference with community or social activities
E45/5599
In making its contentions, Nyamal refer to paragraphs [54], [58] and [59] of Allen v Western Australia which speaks in general terms of the Nyamal people maintaining connection to their country, living in and around the determination area and the importance of the ongoing collection of bush foods.[3] Nyamal submits that this shows evidence of community and social activities in the determination area.[4]
[3] Nyamal contentions, [8].
[4] Ibid, [9].
The affidavit of Mr Mitchell sets out the belief that the grant of E45/5599 will interfere with the ability of Nyamal to hunt and gather resources, continue to practice ceremonies in the area and protect and maintain areas of cultural significance in the area.[5] As in the Nyamal contentions, there is no specific information on the extent to which these activities may occur in the proposed licence area or to what extent the activities of FMG Pilbara may interfere with them.
[5] Gavin Mitchell affidavit, [5]
The Government party contend that insufficient evidence has been provided by Nyamal to meet the requirements of s 237(a). It states the information provided is general in nature and lacks specifics on frequency of activities, duration, numbers of people involved, locations where these activities might occur or whether any activities are unique or specific to the proposed tenement area.[6] The Government party further contends that the evidence provided by Nyamal doesn’t address how community and social activities may be interfered with and that interference is in any case, unlikely.[7] FMG Pilbara contend similarly.[8]
[6] Government party E45/5599 contentions, [25].
[7] Ibid, [26]-[29].
[8] FMG Pilbara E45/5599 contentions, [5]-[6].
I accept the Nyamal contentions of ongoing connection to country, however these contentions are of a general nature and don’t provide specific evidence in relation to community and social activities that occur on or around the proposed licence area or whether these activities are restricted to the licence area. This leaves little upon which to make an assessment on how FMG Pilbara’s exploration activities would be likely to interfere with these activities, even if they were exercised to the full extent.
As a result of this, I can only conclude in this instance that there is insufficient evidence to lead to a finding of interference with community or social activities in the licence area or its surrounds.
E45/5592
In a similar fashion, in relation to E45/5592 Nyamal refer to Eaton v Western Australia at [5a] – [5d] where some of the native title rights and interests held by the Nyamal people are set out. Nyamal then submits that this shows the Nyamal people ‘continue to engage in community activities in the form of gathering and hunting in the area subject to the tenement application’[9] and that the grant of the tenement will interfere directly with the carrying on of native title activities.[10]
[9] Nyamal E45/5592 contentions, [8].
[10] Ibid, [9].
In her affidavit, Mrs Eaton sets out her belief that the grant of the licence is likely to interfere with the carrying on of native title activities, particularly the right to hunt and gather in the area and the practice of ceremonies.[11] Mrs Eaton also states that cultural practices take place on or near the tenement,[12] that she and her family visit the area near and on the tenement[13] and that they regularly hunt and gather food on or near the tenement.[14] Mrs Eaton also states that ‘[t]here is a dreaming in the tenement which is Seven sisters. Songlines I can’t speak about as it is men’s business … I can’t say anymore [sic] about it because I would get in trouble.’[15]
[11] Doris Eaton affidavit, [6].
[12] Ibid, [14].
[13] Ibid, [18].
[14] Ibid, [19].
[15] Ibid, [22].
FMG Pilbara contend there is insufficient evidence to demonstrate that community and social activities occur on or exclusively on the proposed licence area,[16] as does the Government party.[17] Both parties also contend there is insufficient evidence to demonstrate there would be interference to any of these activities as a result of the granting of the licence.[18]
[16] FMG Pilbara E45/5592 contentions, [5].
[17] Government party E45/5592 contentions, [22].
[18] FMG Pilbara E45/5592 contentions, [5]; Government party E45/5592 contentions [23]-[26]
I agree with FMG Pilbara and the Government party on this point. Like E45/5599, there is a lack of specific evidence to lead to a finding of interference with community and social activities. Mrs Eaton does allude to a dreaming place or line on the licence however states she is unable to speak of it. While this begins to illuminate a potential for cultural or ceremonial activities, the lack of more specific evidence about the activities that may occur within and in proximity to the licence area does not enable any finding in relation to it. Sensitive and gender restricted evidence is able to be properly protected by Tribunal directions in order for the required evidence to be placed before an inquiry however Nyamal did not seek to avail themselves to this opportunity in this matter.
As such, like E45/5599, I can only conclude there is insufficient evidence to lead to a finding that the granting of the licence is likely to interfere with community or social activities in the licence area or its surrounds.
Section 237(b) – Interference with sites or areas of particular significance
E45/5599
In making contentions in relation to s 237(b), Nyamal further refer to paragraph [59] of Allen v Western Australia and state that the location of a registered site in the proposed licence areas, ‘is clear and unambiguous evidence that the licence area is of more than ordinary and substantial significance to the Native Title Party’[19] and that substantial interference is likely from the activities permitted by the granting of the licence.[20]
[19] Nyamal E45/5599 contentions, [14].
[20] Ibid, [15].
In his affidavit, Mr Mitchell outlines that there is a registered Aboriginal site in the proposed licence area being Site 403, Ripon Hills Road 5, which is also reported in the AHIS report provided by the Government party. Mr Mitchell states that this shows the tenement area is of significance for Nyamal people, that it is of importance for Nyamal law and culture that the site remain undisturbed, that the site of is physical and spiritual importance to the Nyamal people and that the grant of licence is likely to interfere with the site.[21]
[21] Gavin Mitchell affidavit, [8]-[11].
The Government party contends that Nyamal do not ‘deal with any alleged sites or areas of particular significance’ to enable the conclusion to be drawn that there are sites of particular significance or that the activities of the FMG Pilbara are likely to interfere with these sites.[22]
[22] Government party E45/5599 contentions, [36].
FMG Pilbara contends the grant of the licence is not likely to interfere with sites of particular significance as it is aware of and complies with its obligations under the AHA, there is no evidence that the area is of special significance or of any real chance or risk of interference from Nyamal and that it has developed processes that are sufficient to prevent interference. FMG Pilbara also refers to the affidavit of Nerolie Nikolic which outlines these processes, to which the FMG Guidelines for the Management of Cultural Heritage is attached.[23]
[23] FMG Pilbara E45/5599 contentions, [9].
I agree with the contentions of the Government party and FMG Pilbara. Nyamal have not provided a strong explanation as to the grounds upon which the site is of particular significance according to the traditions of the Nyamal people. There is registered site in the proposed licence area, however the Tribunal has previously found that sites on the Register of Aboriginal Sites are not necessarily of particular significance for the purposes of s 237(b) (see for example Yindjibarndi v FMG at [119]) and the reference to a place without properly identifying the nature of its significance does not provide the Tribunal with a basis for finding a place is of particular significance (see for example Gilla v Great Western at [18] citing Barnes v AngloGold Ashanti at [49] and WF v Emergent Resources at [45]).
For this reason, I am unable to conclude that the sites or areas discussed are of particular significance and as such, conclude that the grant of E45/5599 is not likely to interfere with sites of particular significance.
E45/5592
Similarly to the previous section, Nyamal cite Allen v Western Australia,[24] although the determination area is Eaton v WA, after which the focus of the contentions is paragraphs [7] – [11] of the affidavit of Mrs Eaton. These read:
7.The tenement is near Shaw River which is of great significance in Nyamal culture. Shaw River is interconnected with may creeks in Nyamal country and is a continuing part of Nyamal traditional culture and part of interconnected landscape.
8.Shaw River is part of the dreamtime story of Walla Wallung which is part of creation and significant to the area. The dreaming story is of birth, creation and the formation of life for my Nyamal people, that is what Walla Wallung is about.
9.There are place and sites of significance to Nyamal common law native title holders that are surrounding the tenement. Even though there may not be identified sites in the tenement, the area around the tenement is thriving in Nyamal culture with places of significance everywhere.
10.There are Yinta in the area of the tenement which are pools. Yintas are given from the ancestors to the traditional owners of the area to speak for it and look after it. They can be conception sites.
11.The Yintas are signs that the area is connected to the dreamtime story of Walla Wallung which is part of creation and significant to the area.[25]
[24] Nyamal E45/5592 Contentions, [14].
[25] Doris Eaton Affidavit, [7]-[11].
These further read that:
12.I believe that the act is likely to interfere with areas and sites of particular significance in the Nyamal people’s traditional country, the reasons for this are following:
i. There are lots of waterholes, pools and camps surrounding the tenement area which is part of Walla Wallung and must not be disturbed;
ii. Registered site identification 11159 Shaw River, engraving no gender restrictions;
iii. Heritage place 11055 Shaw River with is a camp, no gender restrictions.
13.These places are all significant to Nyamal common law native title holders and I am worried that the explorer will cause disturbance to these significance [sic] sites, areas and places in travelling to the tenement. I am worried that Nyamal culture will be disrespected and disturbed.[26]
[26]Ibid, [12]-[13].
Nyamal contend that the licence area is of more than ordinary and particular significance and substantial interference is likely to occur should the activities permitted by the grant of the licence proceed.[27]
[27] Nyamal E45/5592 contentions, [15].
Similarly to E45/5599, FMG Pilbara contend there is unlikely to be interference with sites of significance by the granting of E45/5592 as in this case there are no registered sites within the tenement, prior exploration activity may have already impacted upon the land, the two Shaw River sites referred to by Mrs Eaton are outside of the tenement and no evidence has been provided as to how they may be interfered with. Also, FMG Pilbara contend that it is aware of its obligations under the AHA and has developed and extensive set of processes to prevent interference with any areas of particular significance.[28] FMG Pilbara refers again to the affidavit from Nerolie Nikolic which outlines these processes, to which the FMG Guidelines for the Management of Cultural Heritage is attached.
[28] FMG Pilbara E45/995592 contentions, [9].
The Government party also contend that Nyamal have provided insufficient evidence. The Government party acknowledges the evidence of Nyamal relating to Yinta and the Walla Wallung however state that information has not been provided as to location of specific places, that the evidence in relation to Yintas is general and has not addressed particular significance of specific sites or areas. It continues by making the contention that this broad and general evidence cannot be relied upon to support a conclusion that sites are of particular significance or within the licence area.[29]
[29] Government Party contentions, [31]-[34]
The Government party further contend that the Shaw River sites identified by Mrs Eaton are located some 19 kilometres outside of the tenement[30] and that insufficient detail has been provided as to their significance.[31] Similarly the Government party contends that Nyamal have provided insufficient evidence to explain how the grant of the licence would interfere with sites of particular significance or to demonstrate there is a real chance or risk of disturbance.[32]
[30] Ibid, Annexure 5.
[31] Ibid, [38].
[32] Ibid, [39]-[42].
Like E45/5599, I agree with the contentions of the Government party and for similar reasons. While the affidavit of Mrs Eaton does bring forward some evidence in relation to Yintas and the Walla Wallung dreaming, the evidence provided for these places is too general in nature to allow a finding that they are of special significance for the purposes of s 237(b). Additionally, these places are said by Mrs Eaton to be associated with the Shaw River which is shown to be some 7 kilometres to the East of the tenement in the Government party contentions[33] and no evidence is put forward as to how the grant of the licence may generate interference with these places. Additionally, mapping provided by the Government party contentions appears to indicate that the tenement is in the catchment of the East Strelley River rather than the Shaw River,[34] further reducing the risk of interference with these places from downstream effects.
[33] Ibid, Annexure 5.
[34] Government Party E45/5599 contentions, Annexures 1 and 5.
A similar situation arises in relation to the two Shaw River sites raised in Mrs Eaton’s affidavit. They are shown in the Government party contentions to be some 19km distant from the proposed tenement[35] and insufficient evidence has been put forward to show why these may be of special significance and how interference with them might occur.
[35] Ibid, Annexure 5.
As such, I conclude that the grant of E45/5592 is not likely to interfere with any sites of particular significance.
Section 237(c) – Major disturbance to land and waters
E45/5599
Nyamal simply contend that the grant of the licence is likely to involve major disturbance to land and waters[36] while the affidavit of Mr Mitchell states that ‘[i]n relation to potential for major disturbance to land and waters, I consider that any disturbance to water, waterways, creek and creek beds is too much disturbance over these areas’.[37]
[36] Nyamal E45/5599 contentions, [17].
[37] Kevin Mitchell affidavit, [12].
FMG Pilbara set out that the grant of the licence is unlikely to involve major disturbance of land and waters and that Nyamal have not identified the nature of disturbance they are referring to or provided evidence to support how major disturbance will occur. FMG Pilbara also reference their s 51 statement and the types of activity contemplated on it.[38] The Government party contends similarly.[39]
[38] FMG Pilbara E45/5599 contentions, [12].
[39] Government Party contentions, [41]-[44].
Mr Mitchell states that ‘any disturbance … is too much’[40] however the test here relates to major disturbance which is to be given its ordinary English meaning as understood by the community generally (see for example Little v Oriole Resources No 2 paras [52]-[57] citing Dann v Western Australia). Taking this into account, ‘any interference’ would not meet the threshold for major disturbance. Mr Mitchell would instead be required to identify with some specificity, a much larger level of disturbance to meet the requirements of s 237(c), however this has not occurred in this instance.
[40] Kevin Mitchell affidavit, [12].
Having considered this, I am of the view that due to the lack of evidence put forward on the anticipated nature of major disturbance or evidence surrounding this, I can only conclude that the grant of E45/5599 is unlikely to cause major disturbance to land or waters.
E45/5592
In this matter, Nyamal refer to the affidavit of Mrs Eaton, specifically paragraph 24 which reads ‘I think that any disturbance to land and waters is too much disturbance and it will need to be managed in accordance with Nyamal culture and in consultation with the native title claimants.’[41] Nyamal then contend that the grant of the tenement is likely to involve major disturbance to land and waters.[42]
[41] Doris Eaton affidavit, [24].
[42] Nyamal E45/5592 contentions, [17].
FMG Pilbara assert the grant of the licence is not likely to involve major disturbance to land and waters and draw attention to the s 51 statement which outlines expected activities along with the policies and procedures it has adopted to cater for Aboriginal heritage and consultation.[43] The Government party, like in E45/5599, contend that insufficient evidence has been provided by Nyamal to allow the Tribunal to be satisfied that activities resulting from the granting of the licence.[44]
[43] FMG Pilbara E45/5592 contentions, [11].
[44] Government party E45/5592 contentions, [46].
Similarly to my reasons at paragraph [43], due to the broad nature of the evidence put forward by Nyamal and the lack of specific evidence on the nature or extent of any major disturbance that may be envisaged, it can only be concluded that the grant of E45/5592 will not involve major disturbance to the licence area.
Determination
I find the grant of exploration licences E45/5599 and E45/5592 to FMG Pilbara Pty Ltd are acts attracting the expedited procedure.
Glen Kelly
Member
15 February 2021
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